Boyles' Adm'r v. Overby
| Decision Date | 22 May 1854 |
| Citation | 52 Va. 202 |
| Parties | BOYLES' adm'r v. OVERBY. |
| Court | Virginia Supreme Court |
1. An action on the case for fraud in selling to the plaintiff an unsound slave, which he was induced to purchase by means of a false and fraudulent warranty of soundness; or by means of a fraudulent concealment of the unsoundness of the slave cannot be maintained against the personal representative of the vendor.
2. In such an action against the personal representative of the vendor, though there is a judgment in favor of the plaintiff the error will not be cured by the statute of jeofails. 1 Rev. Code of 1819, ch. 128, § 103, p. 511.
3. In such a case, though there is a verdict for the plaintiff judgment should be rendered for the defendant notwithstanding the verdict.
4. An action is misconceived in the sense of the statute, only in a case wherein upon the trial the proofs show a cause of action fit to be asserted in a form different from that adopted. The defendant is held liable upon proof showing a liability; and if no objection is made to the form of the action until after verdict, the defect is cured thereby.
5. To hold a defendant liable upon a cause of action not asserted, is going to the utmost verge of the law, even where such cause of action is proved. But to hold him liable for such cause when not proved, or proved by evidence not admissible if the suit had been brought for that cause, is going beyond the letter and spirit of the law.
6. The statute, though it will aid defects whether of form or substance in pleading, where a portion of the matter pleaded is appropriate, does not apply to cases in which the matter pleaded is, in all its parts, merely nugatory, setting forth no cause of action or no ground of defence.
This was an action on the case in the Circuit court of Patrick county, brought by Allen S. Overby against the administrator of William Boyles deceased. The declaration contained two counts. The first set out that the plaintiff bargained with Boyles in his life time, to buy of Boyles a negro girl slave, and that Boyles, by falsely warranting and representing the said negro to be sound, falsely and fraudulently induced the plaintiff to buy, and that he did buy of the said Boyles the said negro for, & c.; whereas the said negro, at the time of said warranty and sale, was not sound, & c. The second count set out that the plaintiff was induced by Boyles to buy the said slave, by falsely, deceitfully and fraudulently suppressing and concealing from the plaintiff the fact that the slave at the time of the sale labored under an incurable disease called consumption, which said unsoundness was well known to said Boyles.
Whilst the case was pending the administrator of Boyles was removed from his office, and administration de bonis non was granted to Clark Penn; and on his motion, he was admitted a party defendant.
On the trial of the cause there was a verdict for the plaintiff for two hundred and eighty-six dollars and fifty cents, upon which the court rendered a personal judgment against Penn: And he thereupon applied to this court for a supersedeas, which was awarded.
Grattan, for the appellant.
There was no counsel for the appellee.
The plaintiff's cause of action is set forth in a declaration of two counts.
In the first count he alleges a deceit by Boyles the intestate, in the sale of a diseased slave; and alleges that the plaintiff was induced to purchase by means of a false and fraudulent warranty of soundness.
In the second count he alleges a deceit in the sale of an unsound slave by Boyles the intestate, by means of a fraudulent concealment of the unsoundness of the slave. There is nothing in the record to show upon what proof the verdict was rendered.
These causes of action, and each of them, died with the vendor Boyles; if suit thereon had been brought in his life time, it must have abated by his death. The suit brought against his administrator, and revived against the administrator de bonis non, was for causes of action no longer in existence. This appears from the plaintiff's own showing; and judgment should have been rendered for the defendant, notwithstanding the verdict, unless the statute of jeofails, 1 Rev. Code, ch. 128, § 103, p. 511, may require a different judgment.
It is obvious to remark that notwithstanding the comprehensive terms of the statute, it was not thereby intended to cure all cases occurring before verdict: If such had been the purpose of the legislature, a simple and direct enactment to that end would have been the mode adopted. Instead of this, an enumeration is given of particular errors, which, after verdict, shall not be relied on to stay or reverse the judgment; amongst them are these: " Any mistake or misconception of the form of action; " or " any other defect whatsoever in the declaration or pleading, whether of form or substance, which might have been taken advantage of by demurrer, and which shall not have been so taken advantage of."
In the enquiry whether either of these clauses of the statute includes the case before us, we may discard the second count of the declaration; that is clearly beyond the reach of help from the statute. The first count, in alleging the fraud sets forth that it was perpetrated by means of a false warranty; and it has been suggested that this action on the case in form ex delicto, for the tort, the fraud in the deceit, was misconceived for an action on the warranty, and therefore is cured by the verdict. This I conceive cannot be so. The legislature cannot have intended to sustain a judgment because in a different form of action, and upon proof of other facts, a judgment might have been had for damages assessed by a different rule; and thus, almost necessarily, different in amount. The verdict in this case was rendered upon proof of fraud; for without such proof it could not have been rendered at all. See Trice v. Cockran, 8 Gratt. 442. Yet in an action on the warranty, fraud cannot be proven, being wholly immaterial to the cause of action. The ex'ors of Evertson v. Miles, 6 John. R. 138. In an action on a warranty of soundness, the measure of damages is the difference between the real value and the price paid. Tuck. Com. book 2, ch. 25, p. 353 of new edition; Thornton v. Thompson, 4 Gratt. 121. In case for deceit there is, perhaps, no fixed rule for the assessment of damages; they are not limited, however, as in an action on the warranty; if so, they may go beyond those recoverable in an action on the warranty. Rice v. White, 4 Leigh 474; Brown v. Shields, 6 Leigh 440. An action is misconceived only in a case wherein, upon trial, the proof shows a cause of action fit to be asserted in a form different...
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